The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS TO DISMISS (Document #55 & #58)
This action is brought by Plaintiff Maria Lopez, and it stems from the death of her son, Victor Lopez ("Victor"), while he was an inmate at Wasco State Prison ("Wasco"). This court has jurisdiction over Plaintiff's civil rights cause of action pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law causes of action pursuant to 28 U.S.C. § 1367. Venue is appropriate pursuant to 28 U.S.C. § 1391 because the events giving rise to this action occurred in the Fresno Division of the Eastern District of California.
On April 22, 2008, Plaintiff Maria Lopez filed a complaint in the California Superior Court for the County of Kern. After being served with the complaint, on June 23, 2008, Defendant Vazquez removed this action to this court. On August 27, 2008, Plaintiff filed an amended complaint. On October 8, 2008, Defendant Wasco filed a motion to dismiss the amended complaint. On December 22, 2008, the court granted Defendant Wasco's motion to dismiss and dismissed Defendant Wasco from this action based on Eleventh Amendment Immunity.
On June 30, 2009, Plaintiff filed a second amended complaint ("complaint"). Along with Vasquez, the complaint names A. Kopp, M.D.; M. Tews, Ph.D.; R. Joseph, M.D.; BT Early, Ph.D; and Jagdeep Singh Garewal, M.D. as Defendants. The first cause of action is brought under 42 U.S.C. § 1983 and alleges that Defendants were deliberately indifferent to Victor's rights. The second cause of action alleges abuse and neglect of a dependent adult in violation of California Welfare and Institutions Code Section § 15600, et seq. The third cause of action alleges wrongful death in violation of California Civil Procedure Code § 377.60.
On July 30, 2009, Defendant Vazquez filed a motion to dismiss. Defendant Vazquez contends that Plaintiff's state law cause of action under the California Welfare and Institutions Code is barred by Plaintiff's failure to present that legal cause of action prior to bringing suit. Defendant Vazquez contends that no Section 1983 cause of action has been alleged as to Defendant Vazquez because Defendant Vazquez is only being named as a supervisor. Finally, Defendant Vazquez contends that Plaintiff has failed to show that she has standing to bring a wrongful death claim.
On October 9, 2009, Defendant Kopp and Defendant Tews filed a motion to dismiss alleging the same grounds as Defendant Vazquez on the state law causes of action. Defendant Kopp and Defendant Tews also contend that Plaintiff's Section 1983 cause of action fails to state a claim.
Plaintiff has not filed an opposition to either motion to dismiss.
Under Federal Rule of Civil Procedure 12(b)(6)a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all of the complaint's material allegations of fact are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). However, the court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, -- U.S. -- , 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has explained:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.
The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.' . . . .
Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.
Iqbal, 129 S.Ct. at 1949-50. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
The complaint alleges that on November 20, 2006, Victor was received at Wasco from Ventura County as a parole violator returning to custody. The complaint alleges that Victor was single celled because of his violent past behavior. The complaint alleges that Victor was a participant in the Mental Health Delivery System at the Enhanced Outpatient level of care.
The complaint alleges that on November 26, 2006, Defendant Kopp conducted a Medical Evaluation of a New Arrival on Victor. The complaint alleges that Defendant Kopp left blank the sections in the form for Victor's "Past Suicide History" and whether Victor "Denied history of any past suicide attempt".
The complaint alleges that in 2002, during an interview by two correctional officers, Victor admitted to hitting himself in the head with rocks at the age of eight or ten. The complaint alleges Victor also told the officers that he put a sheet around a light fixture, acting as though he were attempting to hang himself, because he wanted special attention and not because he wanted to commit suicide. This information was absent from Defendant Kopp's report.
The complaint alleges that on January 21, 2007, at about 11:10. a.m., the mental health staff examined Victor because he was displaying bizarre and unhygienic behavior. The amended complaint alleges that Victor was then cleared for placement back into cell 228 on single cell status.
The complaint alleges that on January 22, 2007, at about 1:58 p.m., Floor Officer S. Thompson was making an initial security check of her assigned post. The complaint alleges that when Officer Thompson came to cell 228 she saw Victor hanging from the light fixture by his neck with what appeared to be a state issued laundry bag. The amended complaint alleges that Officer Thompson activated the building's personal alarm system and verbally notified Control Officer A. LeMay what she had found. The amended complaint alleges that Officers Pierce, Mack, and Lopez responded. The complaint alleges that the officers entered the cell and released the laundry bag and carried Victor out of his cell. The complaint alleges that Officer Pierce gave immediate ventilation and Medical Technical Assistant M. Chavez began chest compressions. The amended complaint alleges that Victor was taken to the Correctional Treatment Center's Triage and Treatment Area by Officer Lopez, Officer Choate, and Sergeant R. Figuaeroa. The amended complaint alleges that Medical Technical Assistants M. Chavez and ...